Seattle Real Estate Law Blog

SMOKE ON THE WATER1 (FAUCET): THE STATE OF SMOKING IN CONDOMINIUMS IN THE AGE OF LEGAL RECREATIONAL MARIJUANA

Washington State has become greener, yet smokier, with the recent passage of laws legalizing the personal use of marijuana. The question is: Will one be able to remain pot-free if one’s neighbor in our condominium complex is abiding by the law and smoking marijuana in the unit below/above/next to/or even down the hall from ours?

The bare bones of the new marijuana law are the following: RCW 69.50.401 states, in pertinent part:

(1) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

(3) The production, manufacture, processing, packaging, delivery, distribution, sale, or possession of marijuana in compliance with the terms set forth in RCW 69.50.360, 69.50.363, or 69.50.366 shall not constitute a violation of this section, this chapter, or any other provision of Washington state law.

RCW 69.50.360, regarding marijuana retailers states:

The following acts, when performed by a validly licensed marijuana retailer or employee of a validly licensed retail outlet in compliance with rules adopted by the state liquor control board to implement and enforce chapter 3, Laws of 2013, shall not constitute criminal or civil offenses under Washington state law:

Purchase and receipt of useable marijuana or marijuana-infused products that have been properly packaged and labeled from a marijuana processor validly licensed under chapter 3, Laws of 2013;

Possession of quantities of useable marijuana or marijuana-infused products that do not exceed the maximum amounts established by the state liquor control board under RCW 69.50.345(5); and

Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana-infused product to any person twenty-one years of age or older:

One ounce of useable marijuana;

Sixteen ounces of marijuana-infused product in solid form; or

Seventy-two ounces of marijuana-infused product in liquid form.

How do these new and evolving laws fit within the current framework of our laws that govern smoking in condominiums and other multi-family residences?

Current Laws Regarding Smoking

Washington State statutory law, RCW 70.160.030, entitled “Smoking prohibited in public places or places of employment,” states: “No person may smoke in a public place or in any place of employment.” The definitions section of this statute also states, in pertinent part, at RCW 70.160.020:

. . . “[S]moking” means the carrying or smoking of any kind of lighted pipe, cigar, cigarette, or any other lighted smoking

“Public place” means that portion of any building . . . used by and open to the public, . . . and includes a presumptively reasonable minimum distance. . . of twenty-five feet from entrances . . . . A public place does not include a private residence unless the private residence is used to provide licensed child care, foster care, adult care, or other similar social service care on the premises.

Emphasis Added.2

As was stated last year, the result of this statute’s specific exclusion of private residences from the locations where one can legally prohibit smoking is that the courts will not order the prohibition of smoking in private residences, even when the private residences are condominium units that share walls, floors, and/or ceilings with other private residence condominium units, and even if the smoke from one private residence is causing harm in another private residence.3

The people of the state of Washington recognize that exposure to secondhand smoke is known to cause cancer in humans. Secondhand smoke is a known cause of other diseases including pneumonia, asthma, bronchitis, and heart disease. Citizens are often exposed to secondhand smoke in the workplace, and are likely to develop chronic, potentially fatal diseases as a result of such exposure. In order to protect the health and welfare of all citizens, including workers in their places of employment, it is necessary to prohibit smoking in public places and workplaces.

While Washington has not yet legislatively pronounced its view of the quality of secondhand smoke from marijuana, the American Lung Association states on its web site: “Marijuana smoke contains a greater amount of carcinogens than tobacco smoke.” As such, we can expect that there is at least an equal risk of contracting cancer from secondhand exposure to marijuana as there is from the same exposure to cigarettes.

Current Case Law

There is a bit of hope on the horizon regarding the courts upholding our right to be free from unwanted second-hand smoke in our condominium units. In a recent southern California trial court victory, in Chauncey v. Bella Palermo Homeowner Association, a condominium owner has won a case based on the harm being caused to the owner by their neighbor’s cigarette smoke. Unfortunately for Washingtonians, in California, there is no statutory provision that exempts residences from the “no smoking” laws. The phrase, “A public place does not include a private residence” in Washington’s statute creates a barrier to the Washington courts’ adoption of a similar stance regarding second-hand smoke exposure in Washington.

The Plaintiffs in Chauncey pursued their claims, and prevailed, based on the boilerplate statements found in most every condominium declaration:

Offensive Activity. No noxious or offensive activity shall be carried on in any Unit, Limited Common Element, or Common Element, nor shall anything be done therein which may be or become an annoyance or nuisance to other owners or to the public; including, but not limited to, noise and odors from any Unit.

Unfortunately, the Washington Courts have yet to be swayed by this argument, stating, in one case, that at the time this provision was drafted that cigarette smoking was not contemplated as such a “noxious or offensive activity.”4

Folks That Smoke vs. Folks That Toke

In 1973, Steve Miller wrote:

I’m a joker I’m a smoker

I’m a mid-night toker

I sure don’t want to hurt no one5

For you youngsters, “toking” was a reference to smoking marijuana. The distinction between smoking (a cigarette) and toking (a marijuana joint) pointed out in a song that also references the “pompatus of love,” may sound amusing, but it also points out the societal and generational differences between those who regularly partake of a cigarette rather than roll a joint or hit a bong. How will a cigarette smoker take to a barrage of pot smoke and the corresponding smell of marijuana? How will those young enough to have been raised with the very clear awareness that it was always known that smoking a cigarette will cause cancer accept chastisement for their choice to smoke a joint rather than imbibe a cocktail, a beer, or a glass of wine. We are on the cusp of finding out.

Legislative Cure

I suspect that there will be a substantial increase in the number of disputes and lawsuits stemming from the smells and smoke from bongs and joints, as they mingle with the cigarette smokers’ smoke and smell, or just permeate the air with the smell of “ganga.”6 While the second-hand smoke issue has not yet been as heavily researched as cigarettes, sufficient scientific evidence is available to raise the specter of concerned neighbors, even if they are not immediately affected in their breathing. The long history of marijuana being deemed the “gateway drug” scares many people, who likely will not tolerate the unknown as much as they tolerate the known carcinogens in a cigarette.

If the governance of these matters is left to local jurisdictions, we are going to end up with a migrating population of smokers, tokers, and jokers . . . which leads me back to where I left off when I last wrote about these issues.7

The time has come to bring forth legislation to ask our state to protect us in our homes, if those homes are condominiums, as forcefully as it has been willing to protect us in bars, restaurants, and our offices. One should be able to purchase a home in a condominium complex without that home being made unsafe and unhealthy by a next-door neighbor’s cigarette or marijuana smoke. That neighbor has the option of purchasing a home in a site condominium or other single family home structure that does not share walls, ventilation, or a crawl space with the neighboring homes. The right to be free from the intrusion of secondhand marijuana smoke into ones’ condominium unit exists. We just need to have our state legislators help us codify that right. The Washington State CAI Legislative Action Committee (“LAC”), of which I am a Co-Chair, will be commenting as a stakeholder organization on the revised version of the Condominium Act, which will be put forth to the State Legislature in the next legislative session. Your thoughts on this issue are welcomed, as we assess how best to deal with this issue.

Please let me know of any of these issues as they arise in your communities so that we can work together to find the balance between personal freedoms and quality community association living.